Howie Carr is asking a single appeals court justice to let a full panel hear his appeal of a judges decision that has barred him from jumping to WTKK (96.9) - and to allow him to work at the FM station while the case winds its way through court, which could take over a year.

Carr is appealing a decision by Suffolk Superior Court Judge Allan van Gestel, who said the so-called right to match provision in Carrs WRKO (680 AM) contract is valid and that Carr remains under contract with WRKO. The provision allowed WRKO to match a competing stations offer before Carrs contract expired on Sept. 19 or up to 180 days after it ended.

While Carrs attorneys have argued the provision is invalid under state law, which prohibits post-termination restrictions against people in the broadcast industry, van Gestel said Carr could have waited until after his WRKO contract ended to accept WTKKs offer. Carr cut a deal worth up to $7 million in July to host WTKKs morning-drive show, an offer WRKO quickly matched.

The courts conclusion that Mr. Carr could have freely accepted (WTKKs) offer on Sept. 20, but could not do so even one day earlier, involves an absurd and impractical application of (the statute) that frustrates its essential purpose, Carrs attorneys wrote in yesterdays court petition for interlocutory relief.

Carr is asking a single justice if he can appeal van Gestels decision to a panel because the case hasnt been finalized in trial court. His attorneys also are asking the justice to permit Mr. Carr to work for the broadcaster of his choice, pending resolution of this appeal.

While Carr is no longer on the WRKO payroll, the station continues to use his marquee name, running ads for his radio show in the Herald, airing commercials he narrated and putting a Virtual Howie puppet on the front page of its Web site.

Note: inaccuracy in the headline of this Herald article. 96.9 FM's call letters are WTKK (as stated in the article), not WTTK (those call letters used to be in Boston; 100.7 had them before they became WZLX)

This might be promising for Howie but I get the feeling that they may decide that he was still an Entercom employee when the offer was made, etc.

Carr appeals court ruling on contract
He wants to work for radio station ‘of his choice’ while waiting

By Diedtra Henderson, Globe Staff | October 20, 2007

Talk show host Howie Carr yesterday appealed a judge’s decision that blocks him from jumping to WTKK-FM and asked the state appeals court to allow him to work for “the broadcaster of his choice” while his case works its way through the courts.

The appeal asks that a single judge review decisions by Suffolk Superior Court Judge Allan van Gestel that effectively keep Carr under contract at WRKO-AM through 2012.

At issue are sections of the contract that Carr signed with WRKO parent company Entercom Boston that permitted the radio station to match job offers that Carr fielded from rivals. Carr’s attorneys argue that the “right of first refusal” language in the contract that Carr signed poses post-employment restrictions that state legislators have attempted to outlaw.

Van Gestel ruled that Entercom had the right to match the offer that Carr received from WTKK because it did so while the contract between Entercom and Carr was “still fully operative, albeit for only about two more months” and did not create a “post-employment restriction.”

Andrew Botti, a Boston employment law attorney, said the legal argument made by Carr’s team might gain traction with the appeals court. Entercom’s right of first refusal language “has an anticompetitive effect,” which runs afoul of state law, Botti said. “The appeals [court] is going to have to speak to this. The problem with this case . . . is there is not enough appellant law or precedent to guide us.”

The appeal marked the latest twist in a lengthy legal battle that a review of court documents showed attorneys sought to avoid and that van Gestel said Carr could have sidestepped entirely.

It began when WTKK was wrestling with how to retain listeners loyal to Don Imus after he was fired from his nationally syndicated show for making racist remarks.

The station, owned by Greater Media Inc., hotly pursued their first choice, Mike Barnicle. On June 1, the same day that Barnicle turned down the job, the station reached out to Carr.

Philip L. Redo, the Greater Boston Radio vice president responsible for recruiting and hiring talent, called Cary Pahigian, Carr’s agent and a 26-year broadcasting industry acquaintance, about Carr’s interest in the job.

Redo knew Entercom had not renewed Carr’s contract, a move that would have boosted Carr’s salary. “I understood that to mean that Mr. Carr would be available to work for another employer after the expiration of his agreement with Entercom on Sept. 19, 2007,” Redo testified in a deposition.

“My interest was high and I was told that their interest was equally high, considering that it had been made known to me that [Carr] was interested in A, not staying with Entercom and, B, coming over to our station,” Redo said in the deposition.

Carr’s afternoon slot on WRKO, meanwhile, was dropping precipitously from 5th-ranked among adults 25 to 54 in the spring down to 14th by Arbitron’s June 28 to Sept. 19 summer ratings period.

Within a month of their conversation, Greater Boston offered Carr a five-year contract worth up to $6.75 million, contingent on Carr being legally able to go to the station after his contract expired.

The contract was contingent upon at least one of three things occurring: Entercom failing to match the offer; Entercom waiving its right to match the offer; or a court declaring key sections of Carr’s contract unenforceable.

Entercom, owner of WRKO, responded by quickly matching the compensation offered by its rival and extending Carr’s contract through 2012.

“Carr could have quietly, even secretly, met with Greater Boston Radio Inc. and discussed or negotiated his future with it while his Artist’s Agreement was still operative,” van Gestel wrote on Sept. 19, in an interim ruling.

“What Carr could not do is what he did here: receive and accept an offer from Greater Boston Radio Inc. before his Artist’s Agreement had terminated.”

The day Entercom was informed that Carr filed suit, Entercom’s attorney, Shepard Davidson, urged Carr’s attorney, Bret Cohen, to keep the matter out of court.

“[E]veryone at Entercom genuinely hopes that he will be excited about the fact that he now can remain with Entercom under financial terms that he plainly feels are appropriate,” Davidson wrote. “Likewise, my client hopes that Mr. Carr will recognize that the legal and practical advice he has received in connection with filling the lawsuit was ill-advised and will agree to dismiss the litigation - especially where Mr. Carr will be liable for Entercom’s legal fees to the extent the litigation continues.”

While deciding that Carr’s contract with WRKO should not be shielded from public view, he noted “Carr touts himself as ‘a fixture on local television and radio broadcasts for over 20 years.’ “ The judge added: “The Court judicially notices that Carr also is a frequent author of hypercritical screeds in the Boston Herald, attacking essentially any public figure of his choice.”

In his final decision, van Gestel chided Carr for getting himself into a legal tangle.

“He could simply have waited until Sept. 20, 2007, by which time his Agreement with Entercom would have expired,” van Gestel wrote in the seven-page ruling.

“Carr cannot now say that what he did had no legal effect. . . . And he cannot now twist the language of that Agreement to mean something that it does not.”

I cant even listen to his “replacement” on RKO. Todd Feinberg is about as exciting as watching paint dry. The station is still callin git the Howie Carr Show and using all his signature bits. Its weird.

6
posted on 10/20/2007 10:27:52 AM PDT
by DeusExMachina05
(I will not go into Dhimmitude quietly.)

yeah who knows; there was an interesting reply to this topic from former Boston DJ Chuck Igo (had been on WZLX) on
the boston-radio-interest mailing list)

Chuck wrote: (archived at bostonradio.org):
the right of first refusal in this case actually would have rewarded a contractual employee for NOT sticking to the terms of his/her original agreement. the right-of-first-refusal allows for a current employer to
match an offer from a new, perspective employer. the clause asks the employee to present any new, competing offer, in good faith. as per the contract, the employee, in this case Howie, did so and lost.

yet if Howie were to have “kept his mouth shut” until a minute after midnight of the Entercom contract’s expiration - and just gone to Greater Media, the general gist could have been argued that the empoyee did NOT own
up to his/her end of the original contract (ie: present a competing offer).
this “right of first refusal” is simply another way to attempt to enforce a
non-compete. and in the case of right-of-first-refusal, according to the
courts, is quite legal.

seems to me that there is no good end to a right-of-first-refusal clause
unless the current employer has no desire to retain said employee.

- -Chuck Igo

(PS from Chuck)—and for the folks who maintain “Howie is an adult” (signed the contract,
etc) - yes, he is. and by going to Entercom with the new offer from Greater
Media, he’s a stand-up guy, too.

>>this Judge ought to be bought up on misconduct charges.
It is outrageous that someone can be compelled to work for a company. Only the Military should have that power.

agreed—Entercom seems to believe that while Howie doesn’t
necessarily have to be FORCED to work for them, he also
cannot work at another station in the market. So much for
“non compete clauses” which are illegal in this state.
(But they have a loophole in the “right to match”...)

yes because they think he can be starved out. this is why
Howie wants to be allowed to work for WTKK “in the meantime”;
it would obviously lead to any mention of “Howie Carr”
on WRKO (and WRKO.com) to stop and once he starts at WTKK it may be tough to pull him away...but Entercom feels
that they still have him as an employee and thus
can do this. The idea, Entercom believes, is that
eventually Howie will have to give up and go back to them.

And if he doesn’t they can argue “breach of contract”
and sue him for being off (??) or even, should Howie lose,
get him to pay their legal bills. Nice people. And how
does it look for Entercom when they put up the
“Virtual Howie” thing on their site? A sock puppet—
Hey Howie! We really love you! That’s why we’re
showing the world that you’re our PUPPET.

“”While Carr is no longer on the WRKO payroll, the station continues to use his marquee name, running ads for his radio show in the Herald, airing commercials he narrated and putting a Virtual Howie puppet on the front page of its Web site.””

Wait a gosh-darn minute here....they are not paying him?
And they are still using all his goodies - RE: His name, likeness and voice...I did not know that...

That “Virtual Howie” puppet could be seen as harassment of a ‘former’ employee...he’s on strings...

Could be. I think the argument is that he is under contract to them but has not shown up to do shows (last show: Sept 18,
a day before the contract ended—the topic of discussion
was “taser boy”) so they’re not paying him—and now we
hear something about how he could be liable for Entercom
legal expenses should he lose? (Supposedly Entercom told
him he should keep this out of the courts and if he did
lose, he could wind up paying big)

Entercom believes he’s their employee till 9/30/12 and
by him benching himself it’s some kind of breach of
contract, so they’re not paying him, for one. Hey
Entercom: why not just cut him free?

The use of Howie’s face and voice on Virtual Howie
is debatable; sound clips and pictures of Mumbles
are on Mumblesmenino.us (allegedly a Howie site though
I think WRKO runs it). “Public figure”...Howie has
similar sites for Kerry, Ted K, etc, with sound clips.

But we’re talking public domain (perhaps) sound clips
vs. sound clips of a WRKO show—well, they could claim
they own the rights to those sound clips.
Ay yi yi...

Interestly enough, while WRKO keeps mentioning Howie as being theirs on their web site, one of the AP news stories
that appear on the site talks about how...WRKO talk
host Howie Carr is petitioning a panel to hear his case,
and that he wishes to broadcast on WTKK in the meantime.
WRKO’s site has ignored all this legal drama, but
apparently they do link to that news story.

Then again in the past they had some kind of news-hookup
with the Herald and if they published stories about
DePetro, Finneran, etc., they did show up on the site.

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